Aichelin Ges.m.b.H., A-2340 Mödling, Status: September 2018
I. GENERAL PROVISIONS
- The following provisions apply to all business transactions between AICHELIN Ges.m.b.H. (hereinafter referred to as "The Seller") and its clients ("The Buyer"). They are presented to the Buyer at the time an offer is made and can also be reviewed at www.aichelin.at. The provisions apply regardless of other provisions and collateral agreements, with the exception of agreements in writing between the Buyer and the Seller.
- Any deviating terms and conditions on the part of the Buyer shall not become part of the agreement even in the event that the purchase order of the Buyer has been accepted by the Seller.
II. NATURE AND PURPOSE OF THE AGREEMENT
- Only goods and services listed in the agreement (or included in the offer based on the agreement) shall be supplied. Unless otherwise agreed in writing, the following items are excluded from this agreement: foundations, cable channels, all pipelines for supply and disposal of all media, connecting cables outside the ovens, electric supply, unspecified facilities and system components, the laying of cables, channel and pit covers, charging baskets and racks. Collateral agreements and changes require confirmation in writing by the Seller. Among the items to be delivered, only those properties shall be considered guaranteed which are expressly designated in a written warranty statement and are granted as legally binding by the Seller. In the event that German jurisdiction applies, this agreement falls under section 443, German Civil Code (BGB).
- The written confirmation issued by the Seller determines the scope of any delivery and service. In those cases in which no confirmation is available - in the case of an offer from the Seller which the Buyer has agreed to accept within a stated time period – the terms of the offer prevail.
III. OFFER, DOCUMENTS
- Offers issued by the Seller shall be non-binding. As a rule, offers and drawing proposals are submitted free of charge. The client shall be billed for additional drawing and computational documents prepared at the request of the enquirer in the event that no binding agreement is completed and put into effect.
- Specifications and plans: In general, weights, dimensions, consumption data, performance figures, and all other data listed in the Seller’s documents are for reference purposes only and are therefore not binding. The right to make changes and modifications to the terms of the delivery lies exclusively with the Seller, and the Buyer hereby agrees to implement such changes should he consider them to be beneficial to the plant or its operation.
- The Seller reserves all property rights and copyrights on samples, cost estimates, proposals and project documents, drawings as well as information of a physical and non-physical nature and information provided in electronic format. The Buyer expressly undertakes to only use any information left with him by the Seller within the delivered goods’ intended scope of use while strictly safeguarding the Seller’s interest. No documents may be reproduced or reposted without the Seller’s permission.
- Drawings and other documents associated with an offer must be returned immediately in the event that the contract is not awarded to the Seller.
IV. PRICE AND PAYMENT
- Unless otherwise agreed, prices are ex works (in line with INCOTERMS 2010), uninsured, excluding loading, packaging, ARA licensing costs and any other charges, fees and sales tax. The prices stated in the offer do not include benefits and obligations not specifically mentioned in the Seller’s offer, the Buyer's purchase order and the Buyer’s order confirmation of the prices of the Seller.
- When placing an order that deviates from the original quotation, the Seller reserves the right to adjust the prices.
- Unless otherwise agreed, payment is to be made immediately upon receipt of the invoice by confirmed bank transfer, free of transaction charges and without deduction in the form of:- 30% of total amount as a deposit upon receipt of the order confirmation and invoice- 60% of total contract value after receipt of ready-to-ship notification of the items listed in the delivery contract and invoice - 10% of the total contract value after goods and services have been accepted.
- In the event of past due payment, the Seller is entitled to charge interest beginning with the first day of delayed payment at the rate of 8 (eight)% - points above 3-month EURIBOR p.a. plus bank charges, sales tax, collection fees and any attorney fees.
- Checks or bills of exchange shall only be accepted as payment on account. Any related interest and charges shall be borne by the Buyer. Bills of exchange shall only be accepted by special arrangement and are subject to discount.
- The Buyer is not entitled to withhold payments or to offset claims of any kind against the Seller.
- Should the Buyer fail to fulfill his payment obligations, the Seller is entitled to suspend the fulfillment of his contracted delivery and assembly obligations vis-à-vis the Buyer until the payment has been made. The Seller is entitled to cancel any payment agreement and make the outstanding amounts due immediately if the other party’s financial situation worsens significantly, especially in case of a delay of payment of 1/3 or more of the price, in the event of an adverse change in legal conditions, following a cessation of payments, unsuccessful impounding proceedings as well as in the case of the commencement of bankruptcy proceedings or the dismissal of such due to a lack of recoverable assets. In all of these cases, the Seller is entitled to withdraw from active agreements in their entirety or with respect to the undelivered scope of supply, or to require advance payment or security at his discretion for the outstanding deliveries. The Buyer is obligated to pay damages, but above all, to replace all expenses.
- Should the Buyer fail to pay the Seller’s invoice in full immediately upon receipt, he shall be in default of payment. This provision notwithstanding, the Buyer shall be in default if he fails to make payment on the date specified in the contract. Statutory provisions under which the Buyer shall automatically be in default after receipt of an invoice and after the statutory deadline remain unaffected.
- Should the Buyer be more than six weeks in arrears with his payment after having received the ready-to-ship notice, fail to accept the goods which are the object of the contract or not be in compliance with his obligation to pay, the Seller is entitled to withdraw from the agreement and to claim damages for non-performance after setting a grace period of 14 days.
- Should the Seller make a claim damages for non-performance, he is entitled to compensation of at least 15% of the selling price. This does not rule out the possibility of claiming higher damages.
- Should the Seller not make use of the rights stated above, he has - without detriment to his other rights - the right to dispose freely of the contracted goods.
V. DELIVERY PERIODS, FORCE MAJEURE
- Delivery periods shall begin, unless otherwise provided in the contract, with the dispatch of the order confirmation.
- The delivery deadline shall be considered met if the deliverable goods have left the warehouse or a ready-to-ship note has been sent before the expiration of the delivery period.
- Compliance with the delivery period presupposes the fulfillment of the contractual obligations by the Buyer.
- If the object of the delivery cannot be delivered to the Buyer for reasons the Seller has no control over, the execution of the delivery is considered to be legally binding once the ready-to-ship-note has been issued. In such a case, agreed payments shall be made and the costs of storage, security and insurance are the responsibility of the Buyer.
- The delivery period and the deadlines for any assembly and commissioning of the delivered goods shall be extended by a reasonable period should the Buyer fail to comply with his contractual obligations within the defined deadlines, in particular: 5.1 In the event that payments are not made as stipulated in the contract;5.2 In the event that the Buyer fails to provide the information required for the execution of the purchase order or fails to release on schedule the drawings and plans submitted to him for approval;5.3 In the event that parts to be provided by the Buyer are not available at the time indicated by the Seller in writing;5.4 In the event that the Buyer fails to provide contractually agreed performances and support.5.5 In the event that official licenses or third-party authorizations required for the operation of facilities have not been obtained in time.
- In the event of force majeure, the delivery period and other contractual obligations shall be delayed for the duration of the force majeure. Force majeure only provides the Buyer with a right of withdrawal if there is no end in sight for the disruption. Force majeure pertains to any event which is beyond the operations of the Buyer or Seller and which the latter has no influence over as well as internal unforeseen events (including strikes, etc.). Among other things, force majeure includes disruptions of operations, shipping delays by sub-contractors that cannot be controlled, as well as any event that renders continued production impossible or only possible at a considerably higher cost. The Buyer is to be informed of each beginning and end of each Force majeure event as soon as possible.
- If the Buyer suffers damages due to a delay the Seller is responsible for, he may claim compensation for the delay with the exclusion of any other claims. This includes 0.5% for each full week of delay, but not exceeding 5% of the value of that part of the total delivery which could not be used on time due to said delay. Further claims based on delay are governed exclusively by Section X and are subject to the provisions of Section XI of the same conditions. All claims arising from delays are thus satisfied.
VI. PASSING OF RISK
- The passing of risk to the Buyer (passing of the risk of damage and accidental destruction of goods) occurs under the agreed commercial terms, in accordance with INCOTERMS 2010 provisions effective at the time the agreement goes into effect. Unless otherwise agreed, delivery is ex works: risk is transferred at the agreed time of acceptance at the warehouse of the Seller, even in the case of partial delivery or in the case that the Seller has assumed responsibility for additional services such as assembly and commissioning. In case of delivery ex works, should the Seller undertake to send the Product to its destination upon the Buyer’s request, risk passes to the Buyer at the time the ready-for-shipping note is issued.
- In the event that the Seller assists the Buyer with loading goods, the Buyer shall not hold the Seller accountable for any claims or damages.
- At the Buyer's request, shipment shall be insured at his expense.
- Without detriment to the rights granted under Section VII, the Buyer shall only be permitted to refuse acceptance of delivered goods in the event that the goods have significant defects. In case of minor defects, acceptance shall not be permitted.
- Partial deliveries shall be permitted unless it is unreasonable for the Buyer to accept them.
VII. ACCEPTANCE (GOODS RECEIVING)
- For the delivery items assembled and set into operation by the Seller, both parties confirm the acceptance of the agreed documentation of successful performance with their signing of the acceptance/transfer protocol. The delivery shall be considered received and accepted as a result.
- The documentation of the agreed performance is provided by the Seller during the test runs. If such proof is provided, the Buyer shall not require any further test runs.
- If the Buyer receives a written ready-to-ship notice from Seller and fails to meet his obligation to provide the necessary tools and labor required for acceptance or prevents the implementation of acceptance tests, the tests are deemed to have been carried out successfully on the date the Seller specified for acceptance testing in his notification.
- Defects which do not significantly affect the agreed performance constitute no grounds for refusal of goods and their acceptance/goods receiving. Shortcomings are identified in a defects protocol as part of the acceptance/transfer protocol.
- The Buyer is not entitled to use the delivered goods for production purposes before signing the acceptance /goods receiving protocol. In the case that the Buyer uses the delivered goods before signing the purchase /goods receiving protocol, acceptance/goods receiving is considered to be complete with the beginning of first use.
VIII. RETENTION OF TITLE
- The Seller retains the title of the delivered goods until all of the amounts payable to the Seller by the Buyer arising from the delivery contract have been received. In the event that the Buyer in breach of contract, especially in case of default and subsequent unsuccessful past due notices followed by withdrawal from the contract, the Seller is entitled to demand the return of the delivered goods which Buyer is obliged to surrender. All costs arising from the repossession are borne by Buyer. In the event of third party seizure or other interventions, the Buyer shall immediately notify the Seller in writing and provide all necessary explanations. The Buyer may not pledge or declare the delivered goods as a security.
- In the event of the financial deterioration of the Buyer, ,an adverse change in the legal conditions, the cessation of payments, unsuccessful impounding proceedings as well as in the case of the commencement of bankruptcy proceedings or the dismissal of such due to a lack of recoverable assets, the Seller is entitled, to demand the return of unpaid goods or suitable security at his discretion. In this case, the Buyer has to pay damages and reimburse all expenses.
- The Buyer shall immediately notify the Seller of any action that could affect his property.
- A resale of the reserved goods is permitted only with the written consent of the Seller. In the event that the reserved goods are sold for cash, the Buyer shall keep the proceeds separately and immediately transfer them to Seller to the extent necessary to cover the debt as established in the retention of title.
- In the event that goods are sold under retention of title, the Buyer shall assign all ancillary rights as well as all claims arising from the sale of goods to the Seller which would fall to the Buyer from the resale of goods or to third parties. The Seller is authorized to collect these payments himself. However, the Seller undertakes not to collect a claim as long as the Buyer meets his payment obligations. The Seller is permitted to require the Buyer to provide him with assigned claims and their debtors, provide all information necessary for collection, submit the relevant documents and inform debtors of such an assignment. If deliverable goods are resold together with other goods which do not belong to the supplier, The Buyer claims against the purchaser for the contract price agreed between Seller and Buyer shall be deemed assigned.
- If the Buyer adds further value to the goods via processing or further enhancement, the resulting new goods will be proportionally transferred into Seller’s ownership until complete payment of the purchase price is received.
- The Seller warrants that the delivered goods meet the conditions agreed in the delivery contract. All parts supplied by the Seller are covered by this warranty unless the defect can be traced back to a cause before acceptance/goods receiving or for causes solely relating to the delivery as well as a cause prior to such delivery, in particular faulty design, poor construction material or poor workmanship.
- The warranty period expires after 12 months unless special warranty periods have been expressly agreed for individual items. This also applies to delivery and service objects that are fixed to a building or land. The warranty period begins with the date of purchase / acquisition of the delivery item or at the time of transfer of risk for the delivery process.
- To the exclusion of other claims but subject to the provisions of Sections X and XI, the Buyer’s warranty claim shall be restricted to corrective action, e.g. the improvement or replacement of faulty parts, including freight, disassembly and assembly. It does not extend to disadvantages the Buyer suffers as a result of corrective action such as shutting down a part of the plant. At his discretion, the Seller is entitled to either repair the defective part or deliver a replacement item. In the latter case, he shall accept the return of the replaced part.
- A warranty claim can be made only if the Buyer complies with the terms and conditions - particularly terms of payment and properly and fully maintains the plant (furnace) book supplied to him by the Seller free of charge during the entire warranty period.
- For third party products, the Seller's liability is limited to the assignment of claims he has against the supplier.
- The Seller assumes no responsibility for repair work nor for alterations and conversions of used equipment; the same applies to the supply of drawings to perform such operations.
- Parts subject to wear and tear as specified in the contract or offer are excluded from the warranty as well as those parts which are to be designated as wear and tear parts under technical standards or standards common in the industry.
- The warranty does not apply to defects resulting from poor maintenance and repair, faulty operation, as well as procedures or uses which are not foreseeable under the contract. Furthermore, it does not apply to any damage caused by the following reasons: incorrect storage after delivery, improper assembly or commissioning by the Buyer or third parties, failure to observe the Seller’s operating instructions, natural wear and tear, excessive stress, excessive or one-sided heating, incorrect burner adjustment, unsuitable equipment or replacement materials, defective construction work, unsuitable foundations, chemical, electrochemical or electrical influences etc., provided they have not been caused by the Seller and he is not at fault.
- The Buyer shall inspect delivered goods immediately upon delivery and immediately notify the Seller in writing should he find a defect under warranty. All claims made by the Buyer concerning the defectiveness of delivered goods shall expire should the Buyer fail to report his claim, in the event that the Buyer makes or attempts corrective action himself or the Seller fails to provide sufficient time and opportunity for the necessary repairs and replacements using reasonable discretion. Only in urgent cases of danger to operational safety and for the prevention of excessive damage, or if the Seller is in default concerning the removal of the defect does the Buyer have the right to remedy the defect himself or enlist a qualified third party. In such cases, the Seller is to be notified immediately and the Buyer is obligated to choose the most suitable and least expensive option for removal of the defect and is entitled to ask Seller to bear the cost.
- Liability for any consequential damage is rendered void by changes or repair work improperly carried out by the Buyer or a third party or without the Seller’s prior permission.
- Any additional claims the Buyer makes due to defects of delivered goods, in particular claims for damages that have not been inflicted on the item itself, are ruled out under the provisions of Sections X and XI.
X. BUYER’S RIGHT TO CANCELLATION AND OTHER SELLER LIABILITIES
- The Buyer may rescind the contract if the overall fulfillment of the Seller’s duties is definitely rendered impossible before the passing of risk. The same applies to the corresponding inability on the part of the Seller.
- If the impossibility emerges due to default of acceptance or is the fault of the Buyer, the latter shall remain liable for payment.
- In the event that delivery has been delayed as defined in section V of the Terms and Conditions and the Buyer grants the Seller in default a reasonable grace period with the express declaration that he will refuse to accept the delivery after the deadline and the same deadline fails to be met, the Buyer is entitled to withdraw from the contract.
- Further, the Buyer is entitled to withdraw, if, through his own fault, the Seller lets an appropriate grace period elapse which has been granted to him for repair or replacement of a substantial defect that was established while under his care. The Buyer has the right to withdraw from the contact in cases where it is impossible for the Seller to render repairs or when the Seller is incapable of repairing such a defect or replace the delivered item.
- Subject to the provisions of Section XI, any further claims on the part of the Buyer are excluded - in particular for withdrawal in cases other than those mentioned above, price reduction as well as compensation for damages of any kind, including damage to items other than the delivered goods themselves.
XI. EXCEPTIONS TO LIABILITY LIMITATIONS
- The disclaimers and limitations of the claims by the Buyer in these conditions do not apply in case of intent, gross negligence, or culpable violation of essential contractual obligations. In such cases, the following applies: in the event of gross negligence, with respect to losses including indirect damages, liability is limited to the amount of 10% of contract value or per series of related incidents, not exceeding 30% of the order value. In cases of culpable violation of essential contractual obligations, the Seller will be liable only for contractual, reasonably foreseeable damage except in cases of willful intent or gross negligence. Among other things, this does not include the costs and expenses arising in connection with product recalls the Buyer initiates nor claims by third parties against the Buyer, a possible loss of earnings and any other indirect damages the Buyer has caused.
- The disclaimers and limitations of claims raised by the Buyer in these conditions shall also not apply in cases in which liability for personal injury is covered under product liability law with regard to defects of the delivered goods. The exclusions and limitations do not apply even in the case that defects were fraudulently concealed or whose absence was guaranteed or when life and limb were culpably violated.
XII. OPERATING AND MAINTENANCE INSTRUCTIONS
The Buyer is obliged to observe diligently the instructions and safety warnings provided and to make no changes to the delivered equipment. The Buyer will receive technical descriptions and manuals to the extent needed and undertakes not to make any changes whatsoever to them and to pass on this obligation to every other Buyer that follows.
XIII. ASSEMBLY AND COMMISSIONING
The Buyer is responsible for the timely and free provision of physical facilities, equipment and qualified personnel in accordance with contract provisions to ensure the smooth assembly and commissioning of the plant.
XIV. INTELLECTUAL PROPERTY RIGHTS AND COPYRIGHT
- If the Seller manufactures an article using the Buyer’s design details, drawings, models or other specifications, the Seller shall not be held accountable in the event of possible violations of intellectual property rights.
- Construction documents, e.g. plans, drawings and other technical documents as well as samples, catalogs, brochures, illustrations, etc. remain the Seller’s intellectual property and are subject to the relevant statutory provisions governing reproduction, imitation, competition etc.
XV. PARTIAL INVALIDITY
Even if single provisions of an agreement that has been completed based on these provisions are ineffective, the remaining parts remain binding. The ineffective provision shall be replaced by a valid one that comes as close as possible to the objective pursued. This does not apply if adherence to the agreement would constitute an unreasonable hardship for one of the parties.
XVI. LEGAL VENUE, JURISDICTION AND APPLICABLE LAW
The warehouse of the Seller is the legal venue. The court applicable to the site of the Seller headquarters has exclusive jurisdiction over all contractual disputes - including claims pertaining to documentation and transfer processes - unless the place of business of the Buyer lies within the EU / EFTA area. All disputes arising out of or in connection with contracts with Buyers from outside the European Union or an EFTA State shall be ultimately settled under the arbitration rules of the International Chamber of Commerce by one or more arbitrators who have been appointed in accordance with the same rules. The place of arbitration shall be Vienna. The local law in effect at the location of Seller’s headquarters shall have jurisdiction; the parties stated above are all subject to these terms and the remaining provisions under the terms of the contract and/or in a subsidiary sense to ORGALIME S 2012, "General Conditions for the supply of mechanical, electrical and electronic products", as amended in 2012.
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